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Environment & Planning Update: Domestic news - April 2018

Court of Appeal sets aside High Court’s finding of ESB negligence and liability

The Court of Appeal has overturned the High Court’s finding that the ESB was negligent and liable to UCC in nuisance because it did not provide more storage space for water in its reservoirs in the period leading up to the storm of November 2009, which resulted in extensive flooding in Cork City and damage to the UCC campus.

The Court of Appeal found that that the ESB was no more responsible for the flooding of the river Lee than any other riparian owner. The ESB did not have a duty in law to avoid unnecessary flooding, to keep the level of water in the reservoirs to ‘target top operating level’ or to make anti-flooding storage space available. Public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm. Furthermore, the statutory provisions for the Lee Scheme (which consists of the Inishcarra and Carrigadrohid hydro-electric dams), did not envisage the imposition of a policy imperative of flood alleviation. The Court also held that the ESB was not negligent in terms of warnings.

The Supreme Court judgment dealt with two separate causes of action arising out of a notice served by the ESB on Killross Properties Ltd under s. 53 of the Electricity (Supply) Act 1927 (as amended) (the “1927 Act”) informing Killross of its intention to enter onto its lands to carry out temporary works on an existing overhead line (the “Project”).

The Supreme Court considered and ruled on the following:

Successful Appeal

An appeal by the ESB concerning the nature of the ESB’s power, originating from s.9 of the 1927 Act, to authorise its Chief Executive to exercise its powers under that section, including through an authorised officer (in the present case, the notice in question had been signed by an 'authorised officer' of ESB, who had been given the authority to exercise the powers and functions of the Board by the Chief Executive). The Court allowed the appeal, holding that s.9 does give such authorisation and permits ESB to exercise its s.9 power through or by its Chief Executive once he is so authorised by the Board.

Unsuccessful Cross Appeal

A cross appeal by Killross, relating to the powers granted to the ESB and EirGrid and the relationship between those two bodies. The counter-appeal raised the question of whether the ESB was precluded from exercising its power under s.53 of the 1927 Act (i.e. to place lines above and over ground, and serve notices on landowners in relation to same), as a result of its Infrastructure Agreement with EirGrid and the terms of the licences issued to both EirGrid and the ESB by the Commission for the Regulation of Utilities. Killross argued that the ESB had effectively delegated its powers under this section to EirGrid / ESB Networks. The Court dismissed the cross-appeal and held that the performance of the project did not constitute an unlawful delegation of its statutory power pursuant to s.53 or an abdication of its discretion to use that statutory power. The ESB’s powers under s.53 were not affected by the evolution of the law and rules on unbundling.

The central issue in the application for leave to appeal concerned what regard An Bord Pleanála ought to have had to the potential future expansion of the first, single data centre (to up to eight data halls) when deciding to grant planning for the data centre. An Bord Pleanála argued that there were well established principles of European law that could be applied to the questions the Applicants sought to refer and as a consequence, the requirement that the matter the applicants were seeking to refer to the Supreme Court was not one of “general public importance” was not met. However, the Supreme Court, in granting leave, stated that it was “not persuaded” that it could safely be said that there “might not be a point of general importance concerning the application of the broad general principles identified in the case law to a category of case such as this”. It stated that this did not mean, however, that a reference to the Court of Justice of the European Union (“CJEU”) would be required.

Separately, An Bord Pleanála expressed concern that some of the grounds of appeal were new grounds not previously advanced. The Supreme Court intends to give specific directions on the scope of the grounds of appeal at the directions hearing. It also intends to consider, at that directions hearing, whether it should direct an early and preliminary hearing on the question of whether it is necessary to make a reference to the CJEU.

The Supreme Court also shortened the time for delivery of the notice of intention to proceed from 28 days to 7 days as the Court was “aware that these proceedings have taken some time and is anxious that they proceed with all due expedition”.

On 18 April 2018, Fianna Fáil’s Deputy Dara Calleary introduced the National Infrastructure Bill, 2018 to the Dáil. This Bill will establish a body to be known as the National Infrastructure Commission to advise the government on all sectors of economic infrastructure, including “physical structures, systems, institutions, services and facilities that relate to energy, transport, water and wastewater, drainage and sewerage, waste, flood risk management and digital communications”.

The Bill envisages a Commission that will be comprised of five members for five years, who will be appointed by the Minister for Finance, Public Expenditure and Reform and will be tasked with preparing various reports. Notably, the Bill states that the Commission will be independent in its functions, but does not specify whether independence means independent from industry or government and does not mention budget independence.